KINDALL V. STATE

Sep 23, 2010
CR-86-222
Versions:2010 ARK. 342

Opinion Delivered September 23, 2010

PRO SE MOTION FOR RECONSIDERATION OF PETITION PURSUANT TO ARKANSAS RULE OF CRIMINAL PROCEDURE 37.1 DENIED IN 1997, OR IN THE ALTERNATIVE, TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND MOTION FOR LEAVE TO PROCEED IN CIRCUIT COURT WITH OVER-LENGTH RULE 37.1 PETITION [CIRCUIT COURT OF JEFFERSON COUNTY, CR 86-407]

MOTION FOR RECONSIDERATION OF RULE 37.1 PETITION DENIED; PETITION TO REINVEST JURISDICTION IN TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS DENIED; MOTION FOR LEAVE TO PROCEED IN CIRCUIT COURT WITH OVER-LENGTH RULE 37.1 PETITION MOOT.

PER CURIAM

In 1986, Kenneth Ray Kindall was found guilty by a jury of burglary, aggravated robbery, and rape. He was sentenced to an aggregate term of life imprisonment and twenty years. We affirmed. Kindall v. State, 292 Ark. 173, 729 S.W.2d 1 (1987). In 1996, Kindall filed a petition here seeking relief pursuant to our postconviction rule, Criminal Procedure Rule 37.1 (1986).1 The petition was denied. Kindall v. State, CR 86-222 (Ark. Mar. 3, 1997) (unpublished per curiam).

Proceeding pro se, petitioner now asks that this court reconsider its 1997 decision denying Rule 37.1 relief, or, in the alternative, that this court reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. We first address the request to proceed under Rule 37.1.

Under the rule, as it is now, and as it was in effect when petitioner was convicted in 1986, Rule 37.1(d) provides that any decision of the court in any proceeding under the rule shall be final when rendered and that no request for rehearing will be considered. Pursuant to Rule 37.1(d), the request for reconsideration of our 1997 decision is accordingly denied.2

In a related motion, petitioner asks that, if reconsideration is granted, this court allow him to file a Rule 37.1 petition that exceeds the page limits allowed for such petitions. Inasmuch as the request for reconsideration is denied, the motion is moot.

With respect to petitioner‘s request that jurisdiction be reinvested in the trial court to consider a petition for writ of error coram nobis, after a judgment has been affirmed on appeal, a petition filed in this court for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis only after we grant permission. Martin v. State, 2010 Ark. 164 (per curiam) (citing Newman v. State, 2009 Ark. 539, ___ S.W.3d ___)). We find no ground stated in the petition to warrant issuance of the writ and thus deny leave to proceed in the trial court.

A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002) (per curiam). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Newman, 2009 Ark. 539 (citing Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (per curiam)).

The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. We have held that a writ of error coram nobis was available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Id.

As grounds for the writ, petitioner alleges only that he was convicted of use of a firearm without having been properly charged with that offense. Petitioner appended to the instant petition a copy of the felony Information filed in his case in 1986. The Information reflects that he was charged with being armed with a deadly weapon. Any argument pertaining to the Information or the jury verdict could have been addressed at the time of trial and on the record on direct appeal. It is not an issue that fits within the narrow confines of an error coram nobis proceeding.

Motion for reconsideration of Rule 37.1 petition denied; petition to reinvest jurisdiction in trial court to consider a petition for writ of error coram nobis denied; motion for leave to proceed in circuit court with over-length rule 37.1 petition moot.

CORBIN, J., not participating.

Notes

1
When petitioner was convicted, the rule required a petitioner to obtain leave from this court before filing a Rule 37.1 petition in the trial court. The rule was abolished by this court effective July 1, 1989. In re Abolishment of Rule 37 & the Revision of Rule 36 of the Ark. Rules of Criminal Procedure, 299 Ark. 573, 770 S.W.2d 148 (1989) (per curiam). The rule was reinstated in a revised form on January 1, 1991. In re Reinstatement of Rule 37 of the Ark. Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990) (per curiam). The revised rule did not require petitioners to gain leave of this court before proceeding in the trial court.
2
In 2001, petitioner again sought leave from this court to proceed in circuit court pursuant to Criminal Procedure Rule 37.1. The petition was dismissed pursuant to Rule 37.2(c) which limits a petitioner to one petition under the rule, unless the original petition was denied without prejudice to filing a second petition. Kindall v. State, CR 86-222 (Ark. Jun. 14, 2001) (unpublished per curiam) (citing Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981)). When this court denied petitioner‘s Rule 37.1 petition in 1997, we did so with prejudice to filing a subsequent petition.